Posted on November 28, 2016 by AdminUN

WHEN AGENCIES DRAG OUT DISCIPLINE INVESTIGATIONS

Throughout our career we benefitted from making a note of an excerpt, footnote or even snippet of a case, regulatory comment or policy transmittal. They proved invaluable at bargaining tables when the other side was blindly denying some fact, precedent or concept. We just ran across a good one in a new MSPB case where the Board had to deal with an agency that took discipline against an employee even though it let the investigation drag out for eons. That Board smacked the agency down and here is the critical passage that practitioner son either side of the table might find useful. Continue reading →

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Posted on November 21, 2016 by AdminUN

ISSA, CHAFFETZ TARGET VETS FOR TERMINATION

House leaders just announced that they are coming after veterans, including those with injuries, by making it easier to fire them and deny them other rights.  Yup! God’s honest truth.  Today’s e-media carried a story about how eager House leaders like Chaffetz of Utah are to make it easier to fire federal employees.  Chaffetz, apparently ignorant of the MSPB statistics showing that more than 70% of the time a federal agency fires an employee the firing is upheld even upon an appeal and the fact that employees terminated in their probationary period are almost never reinstated—a 100% success termination rate for agencies, told the media, “It is almost impossible to fire somebody,” in the federal government. Continue reading →

Posted in Discipline/Adverse Action | Tagged | 6 Comments

Posted on November 21, 2016 by AdminUN

AN MSPB HOLIDAY SURPRISE

Would you have predicted this?  An employee was fired. When she filed an appeal with MSPB she not only denied the agency’s charges, but also claimed discrimination based on sex and disability.  Not long after, the agency rescinded the action, purged her record of any reference to the action, and retroactively reinstated her to the non-pay status position she was in when she was terminated.  When the MSPB judge heard about the reinstatement, she closed the employee’s appeal as moot.  But, Continue reading →

Posted in Discipline/Adverse Action | Tagged | 1 Comment

Posted on November 20, 2016 by AdminUN

EEOC REJECTS “LIP SERVICE” FOR THE DEAF/HOH

There is not any breaking news here or newly-established legal precedent—and that is sad. This post is about yet another fed who requested a sign language interpreter for a last minute meeting a manager called with employees. Rather than postpone the meeting to get an interpreter, management decided it was important to have it immediately. It told the employee it would hold the same meeting the next day when it could get an interpreter. But, it never did, and the employee filed charges. Shocked? We kind of are because too many employees seem to think there must be a long-running pattern of discrimination before they have a legitimate complaint. This employee proved once again that is not the case. A single incident can result in a discrimination judgment and money for the employee. Here is how EEOC held the law applied. Continue reading →

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Posted on November 14, 2016 by AdminUN

BARGAINING WITH AN ANTI-UNION GOVERNMENT

Since the Trump empire of hotels, resorts, golf courses and other developments will remain heavily dependent on good service from its employees and relationships with their unions, for this posting we are going to assume that the Breitbart folks in the new Administration do not succeed in making federal employee unions illegal or even totally powerless. This post assumes that labor gets the same treatment from the Trump White house that the self-proclaimed “compassionate conservative” George W. gave it, namely, that it turns the federal agencies in charge of labor relations over to the Heritage Foundation to play with. If that is the way things go, then federal unions will need to tap some very sophisticated bargaining strategies developed during the Reagan and W reigns of terror. We are not going to share them here or anywhere else in writing, but over the next few weeks we are going to point the interested readers in a few directions that might prove enlightening to learning all the tricks that those who endured Reagan and W. had to create on the run. Continue reading →

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Posted on November 9, 2016 by AdminUN

WHAT HAPPENS NOW?

Having lived through a few White House changes, we thought we would share what we know about what will happen next in the federal sector labor relations arena. In the next week or so the President-elect’s team will designate someone to take charge of all the labor relations-related appointments. While DOL and NLRB slots will garner more attention than the fed sector ones, expect that the entire FSIP will be asked to resign—or fired. George W’s folks handed it over to the Heritage Foundation to run during his tenure and there is no reason to expect anything different now, especially since Trump has already committed to letting those folks pick the next Supreme Court nominee. Unions lost about 90% of the times a bargaining dispute went before that FSIP. Continue reading →

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Posted on November 2, 2016 by AdminUN

HR SPECIALISTS ALERT: DISABILITY LAW IS EVOLVING FOR YOU

Suppose a manager calls HR one morning to report that one of her probationary employees has refused to perform a certain function of the job by the established due date and the manager wants to fire the guy. When you ask why the employee refused to do it, the manager claims the employee’s doctor has ordered her not to do the kind of work required to complete the task while he recovers from surgery. She also made it very clear that the employee has not asked for a reasonable accommodation. What is your next move? If it is to start drafting the termination letter, you have not been following developments in the ADAAA disability law. There is at least one federal circuit court of appeals opinion that suggests employees do not have to specifically ask for an accommodation if the employer knows enough about a situation to see that a performance problem is likely related to a disability. One decision does not make it the law of the land, but it does substantially increase the risk that you might be making a big mistake. We will hear more about this evolving HR obligation, but for now check out a new blog posting from OgletreeDeakins law firm entitled, “The Eighth Circuit & the ADA, Part II: Must a Request for Accommodation be Explicit?” and its predecessor. As for those folks on the union side of the table this case might mean that if a member has been disciplined or adversely impacted by an inability to do something and that inability was based even in part on a disability management knew about you might have a decent ADA claim to file.

Posted in Disability, Reasonable Accommodations | Tagged | 2 Comments

Posted on November 1, 2016 by AdminUN

PROBATIONERS: WINNING REINSTATEMENT ON A TECHNICALITY

Unless a probationary employee can claim her rights under some employment law were violated, it is 99% certain that if the agency proposes to terminate her she is a goner. In fact, long gone with zero chance of reinstatement. The 1% depends on whether the employee has a sophisticated union rep or private attorney who can show that the agency tripped over one of the rarely spoken about technicalities for terminating a probationer. Stephen LeMaster of the VA (2016 MSPB 25 (2016) must have had one because the MSPB declared that the agency failed to remember that firing an employee for something that happened before she began her federal employment requires the agency give the employee more rights than if it fired her for something she failed to do after she began her fed career. It is known as the pre-appointment versus post-employment distinction. Continue reading →

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Posted on November 1, 2016 by AdminUN

FLRA INVITES UNION ATTORNEYS TO EXPAND THEIR ENTITLEMENT TO FEES

One of the sweeter benefits for unions is that they are often entitled to receive attorney fees when they win back pay for an employee. When unions win fees they get reimbursed two, three and four times what it cost the union to employ a staff attorney for those hours, namely, salary and benefit costs. It is a very, very nice profit pipeline. Beyond that, attorney fee awards enable unions to free up money they were going to spend on staff attorneys from the annual budget of member dues to devote to other projects. The fees cover the legal staff’s costs and the previously budgeted costs for legal staff can then be redirected into election campaigns, organizing, nicer office space, enhanced travel benefits, etc. We recently saw a post-arbitration settlement document giving a union $2 million in fees. Consequently, it is major news when FLRA announces that it is willing to expand union entitlement to fees beyond the criteria that have been in place for almost three decades. Continue reading →

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Posted on October 31, 2016 by AdminUN

THE LAW OF CONTRACT RATIFICATION: TEST YOURSELF

A 2016 decision out of the Authority has added to the body of law about how unions ratify collective bargaining agreements. See AFGE, Local 1815 and Dept. of the Army, 69 FLRA 309 (2016). Consequently, we thought it might be helpful to let you test your own knowledge of the rules for ratifying agreements. Here are ten questions calling for Yes or No answers that hit the highpoints. Continue reading →

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